The freight train accident in the Gotthard Base Tunnel has brought up liability questions that were already on the agenda of the Federal Council. In its session on 21 June 2023, the Federal Council issued a report on possible actions to intensify the liability provisions in rail freight transport. Read on to learn what these look like and what we think of them.
Topics discussed:
- Railway undertakings (RUs) are liable independent of culpability
- The Federal Council proposes four possible actions – with pros and cons
- We believe: Responsibilities and controls are sufficiently regulated
- Actors will live up to their responsibilities even without new provisions
Railway undertakings (RUs) are liable independent of culpability
The status quo is that RUs are fundamentally liable for damages from accidents involving freight trains on the Swiss rail network regardless of their own culpability. This is referred to as strict liability. However, this does not apply if the damage was caused due to deficiencies in a third-party wagon. In that case, culpability is contractually assumed to lie with the respective wagon keeper. The keeper can only free itself of this liability by proving it was not at fault. In legal jargon, this is termed a reversal of the burden of proof.
The Federal Council proposes four possible actions – with pros and cons
In its report from 21 June 2023, the Federal Council was complying with postulate 20.4259 “Overall assessment of liability in rail freight transport”. This was established by means of motion 20.3084 «Clarifying liability rules in rail freight transport” from Frédéric Borloz (see VAP blog post “Motion Borloz”). Within the framework of the overall assessment, the Federal Council presented four possible actions to the Parliament:
- Expanding the strict liability of the RUs to also include cases in which the characteristic risk of rail operations was not a causal factor. This would raise the minimum insurance coverage of the RUs.
- Oblige the RUs to conclude sufficient liability insurance to also cover damages from the transport of hazardous goods. This would not expand the strict liability of either the RUs or the wagon keepers.
- Introduce fault-independent liability on the part of the wagon keepers for damages that were verifiably caused – in whole or in part – by their vehicles or their cargo, e.g. in the event of leaked hazardous goods from a parked wagon. This would oblige the wagon keepers to conclude sufficient liability insurance for such cases.
- Keep the current regulations.
The Federal Council notes that each option features pros and cons. The Council sees no urgent need for regulation in this regard. Nevertheless, it is willing to look more deeply into specific variants at the request of the Parliament.
We believe: Responsibilities and controls are sufficiently regulated
As a shipping sector association, we are of the view that the responsibilities and controls are already regulated sufficiently clearly by international law and contracts. The current 2017 version of the “General Contract of Use for Wagons (GCU)”, which constitutes the international shipping provisions in force between over 750 RUs and the wagon keepers, already satisfies option 3 presented by the Federal Council of increased liability on the part of the wagon keepers. According to the GCU, wagon keepers are liable for deficiencies on their wagons if they cannot prove an absence of fault.
Actors will live up to their responsibilities even without new provisions
Wagon keepers who belong to our association maintain extensive insurance coverage under the current liability regime since they are responsible for the maintenance of their wagons. The introduction of an additional legal insurance obligation or strict liability for wagons operating in Switzerland would massively impede the free use of foreign wagons (both private wagons and those of RUs). This would entail a huge loss of flexibility in international freight transport both for import/export and – in particular – for transit. We will continue to follow this topic closely and report on current developments.
